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Benson v. Ocwen Loan Servicing, LLC

United States District Court, E.D. California

December 1, 2014

THOMAS BENSON and MARCELLA BENSON, Plaintiff,
v.
OCWEN LOAN SERVICING, LLC ET AL., Defendant

Thomas Benson, Plaintiff, Pro se, Lodi, CA.

Marcella Benson, Plaintiff, Pro se, Lodi, CA.

For Ocwen Loan Servicing, LLC, Western Progressive, LLC, Mortgage Electronic Registration Systems, Inc., HSBC Bank USA, N.A., as Trustee on behalf of ACE Securities Corp Home Equity Loan Trust Series 2006-HE3, Defendants: Kimberly Ann Paese, LEAD ATTORNEY, Severson & Werson, San Franciso, CA.

ORDER DENYING PLAINTIFFS' EMERGENCY EX PARTE APPLICATION FOR TEMPORARY RESTRAINING ORDER

Troy L. Nunley, United States District Judge.

This matter is before the Court pursuant to Thomas Benson and Marcella Benson's (collectively referred to as " Plaintiffs") application for a temporary restraining order (ECF No. 10). The Court has carefully considered the arguments presented by Plaintiffs. For the reasons set forth below, Plaintiffs' motion is DENIED.

I. FACTUAL BACKGROUND

Plaintiffs allege as follows: On or about February 1, 2006, Plaintiffs executed a Promissory Note and Deed of Trust in relation to a loan with Credit Corporation (" Encore") as the " lender, " Defendant Mortgage Electronic Registration Systems, Inc. (" MERS") as the " nominee" beneficiary in place of the " lender, " Fidelity National Title Insurance Company as " trustee, " and Plaintiffs Thomas Benson and Marcella Benson as the " borrowers." (Compl., ECF No. 1 at ¶ 10.) The Deed of Trust was recorded on or about February 9, 2006, in the official records of San Joaquin County, California where MERS consequently designated itself as both " beneficiary" and " lienholder" in said records. (ECF No. 1 at ¶ 10.)

On or about August 8, 2008, a " Notice of Default" was recorded in San Joaquin County, stating that Plaintiffs were " in default" with regard to the subject loan, and that MERS is the " beneficiary" of the subject Deed of Trust. (ECF No. 1 at ¶ 11.)

On or about January 30, 2009, an " Assignment of Deed of Trust" was recorded in San Joaquin County, in which instrument MERS purported to " assign" all its rights, title and interest regarding the subject loan to HSBC Bank USA, N.A., as Trustee on behalf of Ace Securities Corp. Home Loan Trust and for the Registered Holders of Ace Securities Corp, Home Equity Loan Trust Series 2006-H3, Asset Backed Pass-through Certificates whose address in in care of Ocwen Loan Servicing, LLC. (ECF No. 1 at ¶ 12.)

On or about January 30, 2009, a " Notice of Trustee's Sale" was recorded in San Joaquin County, which document states that the purported " beneficiary, " Mortgage Electronic Registration Systems, Inc., under said Deed of Trust, recorded February 9, 2006 as Instrument No. 2006-032215, " will proceed to auction on a specified date, the property commonly known as, 736 North Golden Avenue, Lodi, California 95240, if the defaulted amount is not brought current." (ECF No. 1 at ¶ 13.)

On or about April 22, 2014, a " Notice of Substitution of Trustee" was recorded in San Joaquin County stating that " the undersigned, HSBC Bank USA, N.A., as Trustee on behalf of Ace Securities Corp. Home Equity Loan Trust and for the registered holders of Ace Securities Corp. Home Equity Loan Trust, Series 2006-HE3, Asset Backed Pass-through Certificates, by its Servicer Ocwen Loan Servicing, LLC, is the present Beneficiary under the certain Deed of Trust dated 02/01/2006 and recorded 02/09/2006 as Instrument No. 2006-032215 of the official records of San Joaquin County, California, and does so substitute Western Progressive LLC as Trustee." (ECF No. 1 at ¶ 14.)

On or about May 1, 2014, a second " Notice of Default and Election to Sell under Deed of Trust" was recorded in San Joaquin, which states " by reason thereof, the present beneficiary under such Deed of Trust, has executed and delivered to said duly appointed Trustee, a written Declaration of Default and Demand for same, and has deposited with said duly appointed Trustee, such Deed of trust and all documents evidencing obligations secured thereby, and has declared and does hereby elect to cause the trust property to be sold to satisfy the obligations secured thereby." (ECF No. 1 at ¶ 15.)

On or about May 12, 2014, Plaintiffs received a " Debt Validation Notice" from Defendant Western Progressive, LLC (" Western Progressive") which contained the aforementioned Default recorded on May 2014. (ECF No. 1 at ¶ 16.) In response, Plaintiffs submitted a " Qualified Written Request" to Western Progressive, LLC on or about September 13, 2014. (ECF No. 1 at ¶ 17.) During the period of September 30 to October 6, 2014, Plaintiffs received numerous responses to the request from Ocwen which included: a general response letter dated September 30, ...


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